Classification of Mixed-Use Properties for Property Tax Purposes The Final Chapter – Or is it?


Background

The Assessment Act, in a nutshell, says any land that is vacant and not zoned or held for commercial or industrial purposes should be classified residential (more specifically detailed in previous articles).  We suggested that Land goes from underground to the sky, thus any zoning that limited commercial development on any floors and allowed residential, should be classed residential. The Supreme Court agreed (Amacon case).

The Outcome:

  • Air space is land for assessment purposes
  • If the air, or part of it, is vacant, it can qualify under the Assessment Act for a split classification
  • Any airspace that can be used, according to the zoning bylaw, for residential only, should receive a residential class
  • This could apply to commercial properties that have commercial on the main or second floor, if the property is not fully developed
  • Undeveloped Properties with defined densities (e.g.: Res 2 Com 3), should have a split classification

Latest Events

There were 2 cases to deal with issues arising.

The appellants submitted that C2(b) and C2(c) should qualify for split class. (Reliance). 
BCA believed that these zonings did not qualify because:

  • Documents other than the bylaw could not be referred to
  • The uses were conditional
  • The bylaw is not “specific” enough
  • In C2(c) basement space can be occupied and thus 3rd floor would not be built

Board Decision

  • Only documents in the regulations can be considered.  The bylaw is such, but not other supporting documents.  It must be specific.
  • Conditional uses count in assessing classification.

C2(b)

In C2(b) sites can be developed with 1st and 2nd floors and residential for the balance of the 2.5 FSR.  40% of the assessed value should have residential class.

The Board concluded that the wording was specific enough and these properties would obtain a split class.

C2(c)

In C2(c) and C2(c1), only residential is permitted on the 3rd floor.  The FSR is 3 so the class should be 33% residential at a minimum.

The issue was muddied by the fact that all recent westside developments had 4 storeys.  The bylaw does not refer to a 4th floor.  The possible basement use/development was an issue.

The Board declined to grant split class as the areas of residential were not specific enough.

Conclusion

Conditional uses in any bylaw can qualify for consideration for split class.  For example, in Richmond if outright zoning is 1 FSR, but subject to conditions being met, the density can be 1.43, class split must be based upon 1.43.

The appellant community believed that the Board may have found a different conclusion on C2(c), if the concept of development was a little clearer, but that may go outside the bylaw.

Opportunities

There is still an opportunity to challenge some issues of mixed-use classification.  It will be a case by case analysis.  C2(c) might be rephrased and challenged again in 2018.  Any site with mixed-use zoning should be referred to a tax agent for evaluation.

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